Young v Tockassie [1905] HCA 17

By section 47 of the Act of 1880 the Governor-in-Couneil is empowered to make regulations "not inconsistent with the provisions of the Act forthe dat and effectual execution of the provisions thereof and respecting any matter thing necessary to give effect to the objects of this Act," &e, A regulat purporting to be made in pursuance of this section, was made on 25th February, 1896, which provided (No. 5) that "No employer of a time-expire Islander shall be required to pay the wages of any such Islander during sickness," &e.

In a proceeding by respondent, a time-expired Islander, to recover sum money representing wages deducted by his employer during sickness:

Held, affirming the decision of the Supreme Court of Queensland, tit regulation 5 did not fall within the enabling words of sec. 47 of the Att, ad 'was consequently inoperative to alter the law by which the partie t te 'engagement were governed, and that as the actual written agreement service contained no stipulation for such a deduction, the respondent wt

Queensland. : whe facts of the case appear fully in the judgment of the

Fez (with him Lilley), for appellants. By regulation 5, made underthe Pacific Island Labourers Act Amendment Act 1884, 'Noemployer of a time-expired Islander shall be required to pay the wages of any such Islander during sickness . . . &e." 'The regulation is binding, being made for the due and effectual exeeution of the Act, and therefore being within the powers con- fered by sec. 47 of the Act.

[GurvvrH C.J. - How is the regulation of the conditions of an "agement between master and servant a regulation for the due and effectual execution of the provisions of the Act 7]

_ It is one of the objects of the Act to regulate the formation and anying out of agreements between master and servant, The 'regulations are in every way consistent with the Act. 'This regulation merely adds a term to those required by the Act. Two ofthe main objects of the Act were (1) to provide for Islanders "teing properly treated and getting proper wages, and (11) to provide them with medical comforts during sickness. These -neeessitated the regulation of agreements between masters and Wanders.

(GrirerrH C.J. - Would not the regulation, if valid, have the tet of altering the common law ?]

'The regulation may alter the law so long as it is for the due and effectual execution of the Act. This is a regulation which purports to be made under the Act, and unless there are very sirong reasons for saying it is entirely outside the seope of the Act, the Court will not avoid it : Slattery v. Naylor (1); Institute gj Patent Agents v. Lockwood (2).

(GkirerH C.J - The question is whether this regulation is within the power given by the Act to make regulations.]

_ Where the object of an Act is to provide for the importation of labour, the regulation of agreements between labourers and their 'misters must come within its purview. 'The State is according

18 App. Gas,, 446, at p. 453. (2) (1894) A.C., 347.

»eat, by special leave, from a decision of the Supreme Court of H. ©. or A.

• to the spirit of the Act in loco parentis to these Islanders,

_ment. 'The duty of the employer to provide medicine and medical

anything in the agreement which might be for their comes within the seope of the Act.

(O'Coxxon J. - Does not this regulation supply a omiseus in the Act ]

Yes; but it is not for that reason outside the general see the Act.

[Grirrrra C.J. - Assuming the regulation is not within te power given by the Act, then arises a question of fact as to { conditions of the agreement actually made]

If the regulation is not within the seope of the powers giva by see. 47 of the Act, it would be necessary to pass a special Ad of Parliament in order to make any regulation in their favour,

'The effect of the regulation is that its provisions are to be implied in all contracts of this kind: Hornbrook v, Hyne (I) 'The magistrate found that the provisions of this regulation mut be taken to have been within the knowledge of both partis Where a contract has been reduced to writing verbal evidence may be admitted to prove a general custom : Buryess v. Wickham (2); even though the contract is required by Statute to be in writing

[Lukin, for respondent, referred to Evans v, Roe (3)]

'The Act endeavours to secure to each Islander the full benefit of his labour and not to allow him to be penalized (eg. by reduction in wages) on account of his fellow-labourer. 'The Act itself deals with deductions in secs. 21 and 22. 'The Regulation means thati the Islander is well during the whole term of service he shall suffer no deduction. 'The regulation is therefore in favour of the Islander, and not inconsistent with the Act. 'The Act aimed al at providing a form of agreement which could be readily unde stood by the Islander, This aim would be defeated if all the terms imposed by the Statute were included in the written agree

attendance (sec. 24) is not included in the agreement; nor maintain an Islander when his term of service has expined : Regulation 8, prohibiting any deduction from wages on aceoust

time lost by sickness as the result of accidents incurred while Mander at work, is a qualification of regulation 5, and if the ue is ultra vires so must the other be.

Tukin, for respondent. 'The Regulation is ultra vires in the "following respects :- - (1.) It is not for the due and effectual execu- tion of the provisions of the Act. (11) It is not respecting a 'matter necessary to give effect to the objects of the Act; and "(it) Ttis inconsistent in that (a) it does not follow the form of agreement in the Schedule, and (b) it provides that the amount to be paid might in certain events be less than £6 which is the ninimum prescribed by the Act.

Tnasmuch as the regulation alters the law, it cannot be said to befor the due and effectual execution of the provisions of the "Act: Kinnaird v. Correy (1).

The Act 47 Vict. No. 12 requires all agreements with Pacific Manders to be made in the form in Schedule G or to the like tffet (sec. 3); and makes it unlawful to employ any Islander exeept under an agreement for service attested as provided (see. 10), See, 12 imposes a penalty for any offence against the pro- visions of the Act. 'The result of these sections is to prevent an employer entering into an agreement otherwise than in the form ciSchedule G or to the like effect, and to provide a penalty for any breach, One of the rights of an Islander under Schedule G is toreeeive wages during illness. 'The effect of the regulation is therefore to deprive the Islander of one of his rights under the Act, The regulation here is wholly inconsistent with the form inSchedule G. It is impossible for both to stand together and qperate without either interfering with the other: Tabernacle Permanent Building Society v. Knight (2). [As to the amount Ofdeference to be paid by the Court to regulations made by the exeentive and administrative departments, he cited Hardcastle 'm Statutes (1901 ed.), p. 285.] Tthas been held that a rule, giving Judge power on setting aside a bankruptcy notice to declare 'thatno act of bankruptey has been committed, was wléra vires see. 119 of the New South Wales Bankruptcy Act (No. 25 of 1898),

(1) (1898) 2 QB., 573. L @) (1892) .0.,"298; per Halebury Lu

giving power to frame rules "for the purpose of regulating matter" under the Act: King v. Henderson (1). The legisla did not intend to allow any alteration of the schedules to be ma by regulation unless expressly authorized. 'This appears the wording of see. 7 of 55 Viet. No. 38 (Queensland), 'The wage question is whether the regulation is inconsistent with the pm

[Grierira C.J. - When a Statute says that its provisions to obtain except so far as they may be "inconsistent" with a previous Statute, the inconsistency connoted must be one "so at variance with the machinery and procedure indicated by the px vious Act that, if that obligation were added, the machinery of the previous Act would not work." Re Knight and Tabernad Permunent Building Society (2).

'This power is somewhat analogous to the power given to authorities to make by-laws and impose penalties: Metropd Transit Commissioners v. Bury (3); Reg. v. Shuter, er parte Wren (4).

Lilley, in reply, cited Netherseal Colliery Co. v. Bourne (5)

Grirrirn C.J. This proceeding was taken before the Court of Petty Sessions under the Masters and Servants Act, by th respondent, who was a Pacific Islander, against his employers for the recovery of a balance of 25s. deducted from his wages during the period that he was incapacitated from work by illness. The magistrate held that the sum of money was not recoverable, On appeal to the Supreme Court they held that it was, and direct judgment to be given for the respondent. Although 25s. only nominally involved, we are told that many hundreds, indeel thousands, of pounds are involved in the decision. 'The question arises in this way: - Under the Pacific Islanders' Acts, whith regulated very carefully the introduction, and still regulate the employment, of Pacitic Islanders, provision 1s made that theagr®

J (4) 8 V.LR. (L.), 138. 138 5 per Pry, Ld. (5) 14 App. Cas., 228.

'Gehedule Gof the Principal Act of 1880 or to the like effect, and 'dull be attested by the Inspector, who is to retain a copy. Schedule G is in this form : -

"eMoRANDUM OF AGREEMENT made this day between . 7 of. . . ofthe first part, and the undersigned labourer from "thelsland of . . . , pership . . . , of the second part. The conditions are that the said part of the second part engage toserve the said party of the first part as . tomake . . . generally useful for the term of six calendar months,and also to obey all . . . or . . . overseer's orauthorized agent's lawful and reasonable commands during that patiod, in consideration of which services the said party of the first part doth hereby agree to pay the said part . . . of the seond part wages at the rate of . . . [not less than six younds (£6)] per annum each, to provide . . . with the understated rations and clothing, as well as proper lodging accom- nodation and bedding, and to defray the expenses of . . . conveyance to the place at which . . . to be employed, and to pay wages in the coin of the realm at the end of each six months of the agreement, and provide . . . witha return pussigeto . . . native island at the end of this engagement. No wages shall be deducted for medical attendance."

Then follow schedules of daily rations and clothing, and at the foot is a certificate: "The above contract was explained in my presence to the said labourers, and signed before me by them with

• names or marks, and by the employer or his authorized Apoat... this... dayof ... 18.

"Registered at the Immigration Office, Brisbane, this dayof . . . 18 ." And then it is to be registered at the Tnmigration Office in Brisbane.

That Schedule applied at first only to Islanders on their first introduction, who were not allowed to leave their ship until an 'gwement to that effect was signed. Later, in 1884, an Amend- ent Act provided that "All agreements for service made with Manders, whether the stipulated time for their return to their tutive islands has arrived or not, shall be in the form in Schedule

ts with the Islanders shall be in writing in the form given in H.C. or A.

G to the Principal Act or to the like effect, and shall be duplicate, and attested by the immigration agent or an ing who shall retain one copy of the agreement, provided th term of service specified in any such agreement may be ny not exceeding three years."

At that time a number of Islanders, having served their Period of three years, were not desirous of returning to th islands immediately, and they were often re-engnged. See, the Act of 1880 provides that : - "The Governor-in-Counel] makeregulations not inconsistent with the provisions ofthis Ae the due and effectual execution thereof, and respecting any mallet or thing necessary to give effect to the objects of this Act and such regulations shall forthwith be published in the Gazette a shall thereafter have the foree of law." Purporting to act that power, the Governor-in-Couneil on 25th February, 1896, ma regulations, one of which (No. 5), is in the following words: «Ny employer of a time-expired Islander" - this is a case of a tine expired Islander - 'shall be required to pay the wages of any such Islander during sickness ; but it shall be incumbent uponthe employer to provide all necessary medical attendance in the sam manner and to the same extent as if he had bean the first ot original employer of such Islander." Then there is a provi which it is not necessary to read. Now, under the agreement it the form in Schedule G the employer would be liable'at common law to pay wages for the full period, although the employé prevented by sickness from doing his work during portion of time. Then regulation 8 provided that : - " No deduction from the wages of a time-expired Islander, on account of time lost throug sickness, shall be permitted, where such sickness is the result an aecident which has occurred while the Islander was at work" That is evidently intended to qualify regulation 5. ' When the case came before the magistrate the main question that arose was whether regulation 5 governed the ease. On thi Part of the employer it was set upas a regulation made under the Powers conferred by sec. 47, and having, in the terms of that section, the force of law. If that is so, the deduction was Properly made, and the employers are entitled to succeed. Tf on the other hand it had not the foree of law, or was invalid

operative for any reason, then different considerations arise, Tequstion on this appeal, which we considered of sufficient nee to justify us in giving special leave to appeal, is dhether that regulation can be considered valid in the sense of faving the foree of Jaw so as to alter the common law which the construction of agreements between Islanders and fier employers made in the form given in Schedule G to the Act f1880, The learned magistrate was of opinion that the regu- fion was valid, and had the force of law, but on appeal the Supreme Court held, as I understand, that the regulation was jnvalid so far as it purported to alter the law, that is to say, so ras it purported to exclude the operation of the common law nthe case of agreements made in the form in Schedule G. y held also that it was not invalid in the sense that it would 'eunlawful for an employer to enter into an agreement with an "Jshnder on the terms expressed in the regulation. The words \dgment, and have been

x vires were used in the course of the j used in the argument which has been addressed to us, in a double A regulation or a by-law may be wlira vires in the sense that it deals with a subject not within the scope of the power onferred upon the delegated legislative authority, or it may be a vires because, although dealing with such a subject, it 'seeds the prescribed limits within which the authority may be 'wercised. In the present case the question is whether the regulation is within the scope of the power conferred at all? The authority given is to make regulations for the due and 'ketual execution of the Act or respecting some matter or thing ry to give effect to the objects of the Act. We asked the famed counsel for the appellants what was the provision of the Att for the due and effectual execution whereof this regulation 'Wis necessary or relevant, but did not receive any satisfactory We asked again: What matter or thing necessary to e effect to the objects of the Act does this regulation relate to ? effect of the regulation, if valid, is to say that a rule of the 'onmon law applicable to agreements made in the form given in

luleGin the Act shall no longer be applicable to them. 'Tht would be an distinct alteration of the law as to the con-

ticular prescribed form. In that'sense, therefore, this m may be said either nob to be a regulation at all within th meaning of the Aet, or to be wltra vires regarded as a regulatin Tt may be or it may not be a perfectly legitimate exercise of th authority of the Governor-in-Council to give instructions tt officers, who are charged with the administration of the Actas the terms in which agreements may be made with Islanders; in order to effect the result claimed by the appellants it mm have the effect of altering the law regulating the mutual olin tions of employers and employés. We can see nothing in so, to authorize regulations to be made for any such purpose,

section, it is invalid and inoperative as an exercise of legislatiy authorit Then the case stands thus : - We have an agreemet in writing in the form given in Schedule G, made between th respondent and the appellants. Under that agreement ther

construction of the terms or by implication of the law, are wit the general rule, and cannot be varied or abrogated by ext evidence. 'The only way in which they can be varied or abrogated is by proof of a general user, a user so well known that everyole making a contract in the terms used must be taken to have & tracted with respect to that user. In this case the agreement was writing, and there was no evidence of any such user. 'The mag trate seems to have thought, and not unnaturally perhaps tht this regulation having been promulgated in 1896, and, as hestys

by the Inspectors to the Islanders, any agreement entered by them must be taken to have impliedly included as part of contract the condition prescribed by the regulation. 'That

yerbal agreement to vary a written contract, and, being rely verbal and not in writing, it cannot aftect the construction the contract. The contract therefore remains between the ployer and employé in writing, and there is no variation of the law ean take notice, and under it the respondent is lad to recover his wages without the deduction claimed.

jaiges further expressed an opinion that the regulation was not ra vires in the second sense to which I have referred, that is, ting it as a direction given to officers of the department to weof agreements made in such a form asto be in conformity Upon that point it is not necessary for us to express an

Solicitors, for appellants, Osborne & Waugh for F. W. Payne. Solicitors, for respondent, Nicol, Robinson & Fox for H. N.